The Future Lawyer Weekly Update – w/c 10th September 2018

Your round-up of the stories that you should discuss at interview this week:

Family Law

Reported by Dan James

Proposal For Divorce Law to Include “No-Fault” Scenarios

There is to be a Government consultation on whether “no-fault divorces” should be introduced into law across England and Wales. The proposals could provide a streamlined service to what is a usually prolonged and confrontational process.

David Gauke, the Justice Secretary, is expected to launch a public debate in the near future regarding proposals to change this area of family law which has not seen reform in just under 50 years.

The current law, laid out in the Matrimonial Causes Act 1973, states that an individual seeking a divorce must prove that either their partner is at fault by proving adultery, desertion or unreasonable behaviour, or, if both sides agree, a couple can part ways after two years of separation. Currently, in the absence of consent or no evidence of fault, applicants must wait until they have been living apart for at least 5 years.

The demand for change in the law was recently amplified by the Tini Owens Case where the Supreme Court ruled that the 68-year-old was unable to divorce her husband due to a loveless marriage until they had lived apart for 5 years. The couple had been living separate lives since 2015.

Gauke told The Times that he has “increasingly persuaded” that such changes to the law are demanded publicly. “I don’t think the best way of helping the institution of marriage is by putting bureaucratic hurdles in the way of a divorce.”

Nigel Shephard, who is the former chair of family law organisation Resolution, has said that the current system can create animosity and divides between couples which can negatively impact their children in a number of ways, should they have any.

Claire Blakemore, a solicitor with the law firm Withers LLP, said that “this consultation signals a hugely welcome change to our divorce law. Our clients are often totally unable to understand why they must apportion blame and make their separation more acrimonious. Bringing divorce law up to date to meet the needs of modern families is essential.”

The Lord Chief Justice, Lord Burnett of Maldon, has argued against anonymising court judgments; a move which has been made in jurisdictions such as Australia. He stated that anonymising judgments could lead to ‘a regrettable degree of abstraction in the law. Abstraction that undermines the accessibility of proceedings and abstraction that leaches democratic and public accountability from the law.’ He continued to argue that public access to court proceedings should be promoted in order to build confidence in the justice system, and that this should be done so through ‘a measured expansion of live-streaming and broadcasting of proceedings.’

In relation to the Lord Chief Justice’s argument against anonymity within judgments, a person’s right to privacy should also be considered. Whilst some witnesses may be prepared to disclose their personal matters to court if they are to remain anonymous, they may not feel prepared to do so if this were not the case. For instance, victims of sexual violence or domestic violence may not feel comfortable speaking about their experiences if they believe other people in their community would be able to read about their personal life.

Turning to the Lord Chief Justice’s opinion on broadcasting court proceedings, his opinion holds much merit. For instance, it could indeed prevent Judge’s from being branded as “enemies of the people” (see here), simply due to the lack of public engagement with judgments such as that of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. However, the suggestion of broadcasting court proceedings could also give rise to witnesses “playing” to the cameras, perhaps manipulating the response of the media as well as the public. With the media having such access to court proceedings, social justice (likely to be led by the public’s response to a witness’ testimony and behaviour rather than the law itself) could undermine legal justice. It would also be naive to assume that all Judges could remain totally unbiased, were there public uproar in relation to an ongoing case. The risk with broadcasting proceedings is therefore that the deliverance of justice could become based upon which party’s narrative is best received by the public, rather than being based upon legal rule and evidence; the public could become the judge, rather than the judiciary. Though this may seem an entirely unlikely eventuality, it does explain why the Lord Chief Justice chose to say that an expansion of broadcasting proceedings should be “measured”. A decision on this subject should be approached with much caution.

There is a possibility of an agreement upon the terms of the UK’s relations with the EU for when they exit. The hope for a finalised agreement on their future economic co-operation is hoped to be established soon to allow time for debate before the departure, scheduled on the 29 March 2019. The terms must be “realistic” for the agreement to be formed so soon.

The EU is not prepared to compromise its Brexit principles. However, Michael Barnier’s argument is said to not have changed in substance. Michael Barnier stated there are many points both sides can agree on, such as the welfare over defence and security.

“It is not possible to get freedom for goods without freedom for services, in particular for the movement of people,” Mr Barnier stated.

The Chequers plan, which was discussed over 12 hours, lays out the precise and reasonable aims of the UK’s relations after leaving the EU. It includes things such as an independent trade policy for the UK. There is a concern over the EU not accepting some terms in this proposal.

The Brexit negotiation is causing a huge political strain in the conservative party, who do not agree with a lot of the aims in the Chequers plan; so, Theresa May has been forewarned that the decisions may be opposed in the future Common’s discussions.

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